ORDER : This writ petition is filed by defendant Nos.2 and 3 in O.S.No.2675/2007 on the file of the XVIII Addl. City Civil and Sessions Judge, Bengaluru, against dismissal of I.A.No.7 filed under Order VII Rule 11 of the Code of Civil Procedure, praying to reject the plaint. 2. The respondent Nos.1 to 4 are the plaintiffs in O.S. No. 2675/2007 for partition and separate possession in respect of suit schedule property, against one N. Kupparaju and present petitioners, for partition and separate possession, contending that the suit schedule property is the joint family property of the plaintiffs and defendants. The 1st defendant is the legally wedded husband of 4th plaintiff and father of plaintiffs 1 to 3 and they constitute a Hindu joint undivided family and suit schedule property is the joint family property consisting of two floors with a shop and a residential house with all civic amenities, and plaintiffs are residing in the residential portion of the property. Plaintiffs 1 to 3 are unmarried and are residing with their mother/plaintiff No.4. It is further contended that the 4th plaintiff filed O.S.No.135/1996 for maintenance and also charge in respect of suit schedule property i.e., property No. 66/2 for permanent injunction against the defendants from dispossessing them from the suit schedule property morefully described in the schedule to the plaint. The said suit came to be decreed on 28.06.2001 granting Rs. 3,000/- per month as maintenance to the plaintiffs payable from the date of filing of the suit and creating charge over the suit schedule property for payment of maintenance by the defendant No.1 to the plaintiffs and permanent injunction. The said decree was subject matter of appeal before this Court in MFA No. 638/2002 which was rejected on 10.07.2002. Thereafter, the 1st defendant filed petition for divorce in M.C.No.156/1998 which came to be dropped for not complying with the interim directions made therein. It is further contended that when the decree was made by the Trial Court on 28.06.2001, the 1st defendant sold the property in favour of defendants 2 and 3/the present petitioners by registered sale deed dated 26.07.2001, subsequent to the decree, suppressing the said fact and subsequently MFA No.638/2002 was also dismissed on 10.07.2002. Therefore, suit was filed. 3. It is further contended that when the decree was made by the Trial Court on 28.06.2001, the 1st defendant sold the property in favour of defendants 2 and 3/the present petitioners by registered sale deed dated 26.07.2001, subsequent to the decree, suppressing the said fact and subsequently MFA No.638/2002 was also dismissed on 10.07.2002. Therefore, suit was filed. 3. The present petitioners who are defendants 2 and 3, filed written statement, denied all the plaint averments and contended that they are the bona-fide purchasers from the 1st defendant who is the owner of the property and therefore, sought for dismissal of the suit. 4. When the matter was posted for cross-examination of P.W.1, the defendants 2 and 3 filed application under Order VII Rule 11(d) of the Code of Civil Procedure to reject the plaint contending that the suit schedule property is the self acquired property of 1st defendant and after verifying the document, they purchased the same under a registered sale deed. The 2nd defendant filed suit in O.S.No.3535/2002 against the 1st defendant seeking possession which came to be decreed on 23.11.2004. Subsequently, they filed Execution Petition No. 1620/2005 and obtained delivery warrant. At that stage, plaintiffs filed application under Order XXI Rule 97 of Code of Civil Procedure to come on record. After death of 1st defendant plaintiff came on record as legal representative of judgment debtor and sought to dismiss the execution petition, etc. Therefore, present suit is not maintainable. 5. The said application filed by defendants 2 and 3 was resisted by the plaintiffs by filing objections, denied the averments made therein and contended that the suit schedule property is the joint family property of the plaintiffs and 1st defendant and defendants 2 and 3 have purchased the property with full knowledge and the 1st defendant has allegedly sold the property in favour of the defendants 2 and 3 and therefore, the application is not maintainable and is liable to be rejected, etc. 6. The Trial Court, after considering the application and objections filed, rejected the application by the impugned order dated 10.08.2015. Against the said order, the present writ petition is filed. 7. I have heard the learned counsel for the parties to the lis. 8. Sri Deepak, learned counsel for the petitioners vehemently contended that the impugned order passed by the Trial Court rejecting the application is erroneous and contrary to law. Against the said order, the present writ petition is filed. 7. I have heard the learned counsel for the parties to the lis. 8. Sri Deepak, learned counsel for the petitioners vehemently contended that the impugned order passed by the Trial Court rejecting the application is erroneous and contrary to law. When the suit filed by the plaintiffs itself is not maintainable, the question of continuation of the proceeding does not arise at all. The Trial Court ought to have rejected the plaint and further contended that the present petitioners who are bonafide purchasers, purchased the suit schedule property for valuable consideration through a registered sale deed and therefore, sought to allow the writ petition. 9. Per contra, Sri C.Shankar Reddy, learned counsel for respondents 1 to 4 sought to justify the impugned order and contended that the present petitioners who are purchasers under registered sale deed dated 26.07.2001 subsequent to the decree obtained by respondent No.4/plaintiff No.4 in O.S.125/1996 on 28.06.2001 and trial court granted injunction, property was attached and same was confirmed by this Court in MFA No.638/2002 filed by husband by judgment dated 10.07.2002. Therefore, the very decree obtained by the petitioners in O.S.No.3535/2002 on 23.11.2004 is not binding on the plaintiffs. Therefore, he sought to dismiss the writ petition. 10. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for consideration is: “Whether the Trial Court is justified in rejecting the application filed by defendants 2 and 3 under Order VII Rule 11(d) of Code of Civil Procedure in the facts and circumstances of the case?” 11. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record. 12. It is an undisputed fact that the plaintiffs are the children and wife of the 1st defendant/N. Kupparaju. It is their specific case that the suit schedule property is joint family property of plaintiffs and 1st defendant and it is also not in dispute that plaintiffs filed O.S. No. 135/1996 for maintenance against the 1st defendant and also sought for creation of charge in respect of the very same property which is subject matter of the suit. After contest, the suit came to be decreed on 28.06.2001. After contest, the suit came to be decreed on 28.06.2001. It is also not in dispute that the husband/1st defendant filed MFA No.638/2002 before this Court which came to be rejected by an order dated 10.07.2002, confirming the judgment and decree of the Trial Court, upholding the charge created on the property in question. It is an undisputed fact that after passing of the decree in O.S.No.135/1996 and before rejection of MFA No.638/2002, the 1st defendant sold the suit schedule property to the defendants 2 and 3/present petitioners on 26.07.2001 and it is also not in dispute that the present petitioners filed suit in O.S.No.3535/ 2002 for possession and the said suit came to be decreed on 23.11.2004. Admittedly, the present petitioners are not parties to the said suit. 13. It is the plaintiffs in O.S. No. 2675/2007 have sought for partition and separate possession of their 1/5th share each and also declaration that the sale deed dated 26.07.2001 executed by the 1st defendant in favour of defendants 2 and 3 is not binding on the plaintiffs. The matter has to be adjudicated between the parties in the suit after fulfledged trial, considering both oral and documentary evidence on record. 14. The defendants/present petitioners filed application under Order VII Rule 11(d) of Code of Civil Procedure to reject the plaint mainly on the ground that there is no cause of action. By reading of the plaint averments clearly indicates that plaintiffs have contended that the cause of action arose on 22.02.2007 and subsequently, within the jurisdiction of the Court. Merely because the petitioners purchased the suit schedule property on 26.07.2001, subsequent to decree in O.S.No.135/1996. Admittedly, there is a decree creating charge in respect of the suit schedule property. Unless and until the said decree is set-aside by the competent higher courts, same cannot be held that the present suit is not maintainable. Admittedly, said decree was confirmed by this Court in MFA No.638/2002. Admittedly, there is a decree creating charge in respect of the suit schedule property. Unless and until the said decree is set-aside by the competent higher courts, same cannot be held that the present suit is not maintainable. Admittedly, said decree was confirmed by this Court in MFA No.638/2002. The rejection of the plaint can be made only on the basis of the plaint averments and not on the basis of the written statement filed by the defendants, in view of the dictum of the Hon’ble Supreme Court in the case of Surjit Kaur Gill and another vs. Adarsh Kaur Gill and another reported in (2014)16 SCC 125 held that rejection of plaint can be considered only on the basis of the plaint averments and not written statement filed by the defendants. Paragraph 10 of the said decision reads as under: “10. With respect to these submissions, Mr. Divan pointed out that in fact there is a clear writing of respondent No.1 herein executed on 12.02.1991 which clearly states, amongst others, in para (d) that she will not claim any tenancy right or charge on the above referred property. In para (b) of that writing she agreed to render the accounts with respect to the rental income received from 1.1.1980 to 30.11.1990. In para (c) of that writing she states that with respect to the two mortgages redeemed in her name, she will not claim any charge as the amounts paid for redeeming the said mortgages were paid from the estate of Smt.Abnash Kaur. Mr.Divan states that after executing this writing, the disputes between the parties were supposed to get settled, but then unfortunately it did not happen. Respondent 1 started construction on the particular property in her own right. This having happened in 1992, the original plaintiff was constrained to file the suit for the partition of the property belonging to Smt. Abnash Kaur. Smt. Abnash Kaur having made a will about her property, the original plaintiff had to see to it as the administrator of the will that the property is distributed in accordance therewith. This being the position, in his submission it is Article 58 which is the relevant article for all these prayers, which provides for a period of three years when the right to sue first accrues. This being the position, in his submission it is Article 58 which is the relevant article for all these prayers, which provides for a period of three years when the right to sue first accrues. In the present case, it will be when the dispute arose because of the conduct of Respondent 1 herein. The issue of limitation is always a mixed question of facts and law, and therefore, it could not be held that no case was made out for proceeding for a trial. Mr. C.A. Sundaram submitted that Respondent 1 disputed in writing dated 12.2.1991 and it had to be forensically tested. This submission all the more justifies that the trial had to proceed. For deciding an application under Order VII Rule 11, one has to look at the plaint and decide whether it deserved to be rejected on the ground raised. In our view, the view taken by the Division Bench is clearly erroneous. The appeal is therefore allowed and the judgment and order (Adarsh Kaur Gill vs. Ajit Singh, (2009)157 DLT 137 ) of the Division Bench is set-aside. The application made under Order VII Rule 11 moved by Respondent 1 herein will stand rejected. We may however clarify that all the observations herein are only for the purpose of deciding this appeal.” 15. The Trial Court, considering the entire material on record, by the impugned order has dismissed the application holding that any decree obtained by the defendants 2 and 3 against 1st defendant, they are at liberty to proceed to the execution against the 1st defendant, but will not preclude plaintiffs from filing suit against 1st defendant in respect of their right in the suit schedule property. Therefore, suit cannot be held to be not maintainable or barred by law and no cause of action and cannot be thrown out under Order VII Rule 11(d) of the Code of Civil Procedure as contended by defendants 2 and 3. Accordingly, the Trial Court dismissed the application filed by the defendants under Order VII Rule 11(d) of the Code of Civil Procedure. 16. For the reasons stated above, the point raised for consideration in this petition has to be answered in the affirmative holding that the Trial Court is justified in dismissing the application I.A.No.7. 17. Accordingly, the Trial Court dismissed the application filed by the defendants under Order VII Rule 11(d) of the Code of Civil Procedure. 16. For the reasons stated above, the point raised for consideration in this petition has to be answered in the affirmative holding that the Trial Court is justified in dismissing the application I.A.No.7. 17. In view of the aforesaid reasons, the impugned order passed by the Trial Court rejecting application filed by the defendants under Order VII Rule 11(d) of the Code of Civil Procedure is in accordance with law. Petitioners have not made out any ground for interference with the same under Article 227 of the Constitution of India. Accordingly, petition is dismissed. However, it is made clear that, any of the observations made in this petition shall not come in the way of either of the parties in establishing their case independently, based on oral and documentary evidence on record and in accordance with law.